The petitioner/defendant has projected this Civil Revision Petition as against the order dated 20.02.2007 in I.A.No.8138 of 2006 in O.S.No.5165 of 2001 passed by the XVII Assistant Judge, City Civil Court, Chennai, in dismissing the application filed by the petitioner/defendant under Sections 2 and 3 of the Partition Act.
2.The trial Court, while passing orders in I.A.No.8138 of 2006, dated 20.02.2007, has interalia opined that 'the averments in the petition are not to be accepted presently, based on the present circumstance and also the amount is not in accordance with the market value in regard to the suit property and resultantly dismissed the application'.
3.The learned counsel for the revision petitioner/defendant urges before this Court that the impugned order passed in I.A.No.8138 of 2006, dated 20.02.2007 suffers from serious infirmity or patent illegality and because of the simple fact that the trial Court has assigned an erroneous reason among other things mentioning that the amount in spite of the suit property is not in accordance with the present market value of the property and accordingly has dismissed the application and the said view taken by the trial Court is not in consonance with the provision of the Partition Act and therefore, in the interest of justice, the same has to be allowed.
4.At this stage, the learned counsel for the revision petitioner cites the decision of the Honourable Supreme Court in R.Ramamurthi Aiyar (dead) by Legal Representatives v. Raja V.Rajeswararao (AIR 1973 SUPREME COURT 643) wherein at Paragraph 13, it is observed as follows;
'13.In the argument of the learned counsel for the appellant emphasis has been laid on the fact that in the present case the Court did not give any finding that the property was not capable of division by metes and bounds. It is thus pointed out that the essential condition for the application of S.2 of the Partition Act had not been satisfied and S.3 cannot be availed of by the respondent unless it had first been found that the property could be put to sale in the light of the provisions of S.2. This submission has hardly any substance inasmuch as the trial court had prima facie come to the conclusion that a division by metes and bounds was not possible. That was sufficient so far as the proceedings in the present case were concerned. The language of S.3 (sic S.2) of the Partition Act does not appear to make it obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds. It should only "appear" that it is not so capable of division. It has further been contended that the respondent had maintained throughout that the property was capable of division. He could not, therefore, take advantage of the provisions of the Partition Act. Further he never made any proper application invoking the provisions of S.3 of the Partition Act and all that he said in his written statement, was that in case the court held that the said property was incapable of division into two shares he was ready and willing to buy the plaintiff's share in the suit at a valuation to be made in such a manner as the court might think proper. In our opinion, this was sufficient compliance with the requirement of S.3 of the Partition Act.
Section 3 (1) does not contemplate a formal application being filed in every case. The words employed therein simply mean that the other shareholder has to inform the court or notify to it that he is prepared to but at a valuation the share of the party asking for sale. In the written statement even if it was maintained that the property was not (sic) capable of division by metes and bounds the alternative prayer was necessarily made in para 7 which would satisfy the requirements of S.3 of the Partition Act.'
5.In fact, recourse to
Section 2 of Partition Act can be resorted to only when a sale has been applied for by the shareholder or shareholders to the extent of one moiety of the property or more.
Section 3(2) of the Partition Act directing that the entire property might be put in auction applies only where more than one co-sharer other than a person who has asked for sale under
Section 2 desire to buy the share of the party who has asked for sale.
6.It is to be borne in mind that only when there is an application by the holder of large share for sale under
Section 2 of the Partition Act that the co-sharer can apply under
Section 3. Thus, the less shareholder can apply to purchase the right of the co-share holders. Further, unless the share of the applicant under
Section 3 of the Act is established, no order can be made upon his application directing valuation of property.
7.In Malati Ramachandra Raut vs. Mahadevo Vasudeo Josi (AIR 1991 Supreme Court Page 700 at Page 702, it is observed that;
'The valuation though made subsequently has to be made with reference to the time at which the right arose which in the present case, has found by the Single Judge was on 05.07.1972, when the defendants filed their affidavit seeking leave to buy, or at any rate on 09.10.1972, when they filed written statement reiterating that request.'
8.As a matter of fact, a Court may take evidence and call upon the litigants to furnish materials or the Court may Suo Moto appoint the person who in its opinion is competent to make the correct valuation. The Court can receive parties objections in this regard. Aslo, the Court can make a fresh valuation in spite of the valuation made by the Commissioner, as per
Section 3 of the Partition Act indeed the Court is to bear in mind the interest of all sharers in fixing such a price. In the instant case on in such a procedure has not been resorted to by the Court.
9.From the above citation, it is clear that a Court of Law has to take into account of the ingredients of the
Sections 2 and
3 of the Partition Act in right earnest whenever a Court of Law passes an order in this type of the application like the present one in I.A.No.8138 of 2006, it has to follow the Principles of Law enunciated scrupulously and by no stretch of imagination, it can observe that the value of the suit property is not in accordance with the present market value of the property etc. in the vacum or void.
10.In short, after going through the order passed by the trial Court in I.A.No.8138 of 2006, dated 20.02.2007, this Court is of the considered view that the aforesaid observations of the trial Court that the value of the suit property is not in accordance with the present market value etc., is not correct because the Court cannot determine the market value of the property in a vacum orvoid and resultantly, the trial Court taking a view of dismissal of the Interlocutory Application is per se not correct in the eye of law and therefore, this Court is sitting in revision allows, this Civil Revision Petition in the interest of justice.
11.In the result, this Civil Revision Petition is allowed and the order passed by the trial Court is set aside. The Trial Court is directed to restore the same to its file within a week from the date of receipt of a copy of this order and after restoring the Interlocutory Application to its file, the trial Court is directed to dispose of the I.A.No.8138 of 2006 afresh on merits within a period of four weeks from the date of receipt of a copy of this order in the manner known to law and to report compliance to this Court without fail.
12.It is made clear that the trial Court shall deal with the I.A.No.8138 of 2006 afresh on merits in a dispassionate manner and uninfluenced with any of the observation made by this Court in this revision.
mps To The XVII Assistant Judge, City Civil Judge Court, Chennai